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May God reform them

An interview with Prof. Dr. Ergun Özbudun by Selin Ongun

Istanbul Şehir University lecturer Prof. Dr. Ergun Özbudun is one of Turkey’s leading authorities on constitutional law. The top-notch jurist says that Turkey’s most pressing need is to restore the independence of the judiciary. He says, “Under the prevailing conditions, a change to the constitution based on the separation of powers is currently not possible.”

Özbudun, who in 2007, at the personal request of Prime-Minister Tayyip Erdoğan, headed the academic commission that prepared the AK Party’ draft constitution, recounts how he said, “Mr Erdoğan, I thank you for your confidence. But, if you are expecting a constitution based on the presidential system, please excuse me,” and on receiving the reply that this was certainly not the case and with the relevant clause in the AK Party’s 2007 election manifesto being presented by way of assurance, he accepted the post. And he adds, “We drew up a draft that accorded with the principles of parliamentary government and which very considerably limited the President’s current powers. Not only Mr Erdoğan, but the other leading lights of the AKP found it to be exceedingly positive.”

Even if 79 year old Özbudun is mindful of the late Çetin Altan’s exhortation to “Keep our chins up,” he says he will not see that democratic constitution.

As to Prof. Özbudun’s analysis of events from 2007 until now and his assessments of the breach of rights ruling passed by the Constitutional Court with reference to our Publication Manger Can Dündar and Ankara Representative Erdem Gül, read on.

- Let us take it from the beginning: How do you rate the President’s statement, “I nether comply with nor respect the decision?”

As my esteemed colleague, Chief Judge of the Constitutional Court Zühtü Arslan, has also put it, everybody can criticise judicial decisions. AKP spokespersons also say, “Everybody is criticising the decision. Why shouldn’t the President do so?” I turn this logic on its head. The influence of individuals and we jurists on both the Constitutional Court and other judicial organs is marginal. But when the head of state criticises, and moreover pretty harshly, this brings if nothing else moral pressure to bear on both the Constitutional Court and other judicial organs. I say let us stand this logic on its head so that, even if everyone criticises, it would be better if the esteemed President as the representative of the most hallowed office of state refrained from such criticism. Furthermore, there are other parts of his statement that constitute expressions of moral pressure directed not only at the Constitutional Court but at other judicial organs. For example, he says “The lower court should reinstate its decision.” For one thing, the law does not accommodate this.

- Why not?

Because the lower court has no such power to reinstate its own decision in the face of Constitutional Court rulings. There is express provision in the Constitution: Article 153 says, “Decisions of the Constitutional Court shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.” In the face of this article, the local court that is hearing the case may not rule to the contrary in any case. Passing such a decision, that is denying release, would create penal liability. Even if no other offence arose, the offence of abuse of position under the Turkish Penal Code may be constituted. It is thus clear that that court’s judges are aware of this situation such that, in a well-founded decision, they did not oppose the Constitutional Court’s decision and abided by this ruling. The esteemed President’s words also give expression to pressure on the courts that will be encountered in similar cases and decisions in days to come. The President’s prompting them to stand by their verdicts may lead them into reinstating decisions in a way that the law does not accept. It is impossible for a jurist to greet with satisfaction blatant incitement to breach a constitutional provision and proposals, recommendations and suggestions made to this effect. I also find his words to be objectionable in this regard.

- Let us think of a judge’s psychology. How will proclamations like, “The lower court must reinstate its decision; I neither comply with nor respect the decision,” and other statements that may rank alongside such proclamations, affect judges?

They will have a very serious effect. For one thing, they create moral pressure because these words do not originate from any old person. They are from the highest office of the state. Moreover, in view of the Supreme Council of Judges and Prosecutors‘ present structure and workings, they may create not just moral pressure, but career anxieties, too. Unfortunately, we have witnessed quite a few examples. We witness judges and prosecutors who make decisions that meet with dissatisfaction being barred from the profession, sidelined or becoming subject to investigation by the Supreme Council of Judges and Prosecutors and several have been remanded. Mark you, even under periods of military rule I cannot recall a judge being remanded for a decision they rendered. So, this may create not just moral pressure, but career anxieties, too. With this in mind, the holders of high office must be very careful about statements of this nature.

- The Prime-Minister says that the Constitutional Court has overstepped its authority.

Yes, certain AKP spokespersons are speaking, in far harsher terms, of an usurpation of authority.

- This was what Justice Minister Bekir Bozdağ said.

Yes, certain parliamentarians are going even further. They are suggesting that individual applications be barred in their entirety or that the Constitutional Court be abolished in full. One Member of Parliament has proposed that the members of the Constitutional Court be prosecuted. To such pronouncements, I can say nothing else but may God reform them. These criticisms, even in their more moderate versions along the lines of the Constitutional Court having exceeded its authority, are unjust because the Constitutional Court did not rule on the merits of the case. No exceeding of authority or usurpation of authority is involved. The decision the Constitutional Court passed on Dündar and Gül was not a ruling as to the essence of the case. It was a declaration that rights had been breached through the remand process being conducted in a manner that did not accord with the constitution and ECHR case law. When time in remand is a breach of rights involved in the trial proceedings, which was the case here, for the Constitutional Court to await the finalisation of the proceedings would render the individual application totally devoid of meaning. The breaches of rights in the judicial proceedings themselves and in the course of those proceedings had to do with remand and the Constitutional Court addressed this here. It did not rule on the merits of the case.

- What really caused the allergy here within the ranks of the regime was the sense that the Constitutional Court, in ruling that the rights of ‘freedom of expression and publication’ and ‘press freedom’ had been breached, rather than those of ‘personal freedom and safety’, had addressed the merits of the case.

The Constitutional Court was obliged to address this in deliberating on whether there were reasonable grounds for remand because remand is not a matter that is dependent on a judge’s arbitrary discretion. You are fully deprived of your liberty for an indeterminate length of time. It falls within the tasks of the Constitutional Court to look at the grounds for remand, take them into consideration and discuss them. This conforms to the nature of an individual application, too.

- Let us continue to quote from the President. He says, “It was not me who breached the Constitution, it was the Constitutional Court.”

Let me repeat. The Constitutional Court acted entirely within its jurisdiction. The court did not exceed its authority. There is absolutely no usurpation of authority. Nor is there any question of a breach of the Constitution. Another invalid objection is the one that says, “Look here, this decision was announced without the reasons being made known!” This flies in the face of the nature of decisions on individual applications. It may take months to draft the reasons. There are dissenting members. Their dissenting opinions must also be appended. The announcing of the reasoned decision is a process that may well take several months. In that case, is this breach of rights to continue? This is an exceptionally absurd assertion that is devoid of legal foundation.

- Another of the President’ comments is that Constitutional Court decisions are not binding in individual applications.

I also read this statement of the esteemed President with interest. This is also devoid of any constitutional basis because our Constitution says that Constitutional Court decisions are binding. No distinction is drawn here along the lines of cancellation decisions being binding and decisions on individual applications not being binding. The word ‘decisions’ cover any and all of the Constitutional Court’s decisions. Moreover, this binding nature, according to the working of Article 153 of the Constitution, applies to “the legislative, executive, other judicial authorities and administrative authorities, and persons and corporate bodies.” Absolutely no exception has been made. Hence, there is no constitutional basis to drawing a distinction between cancellation decisions and decisions on individual applications.

- And let us continue to quote: “Since this has now gone to the first court, if the first court goes and reinstates its decision, there is no decision that can be made by the Constitutional Court.”

What the esteemed President is referring to by the first court is the court hearing that case. The court hearing the case did the right thing. It implemented the Constitutional Court ruling. It actually has no right of reinstatement. Pursuant to the article I have just cited, the Constitutional Court decision is binding on other judicial authorities. Reinstatement is not an option.

- Another quote: “This does not mean this is the end of the matter. The prosecutor may object to the decision. If there is an objection, a higher court may initiate proceedings.”

This is impossible, too, because the constitutional provision is equally binding on the prosecutor. The prosecutor cannot make such an objection. If he does so, other penal courts of the peace, what is meant by a higher court, are under a statutory obligation not to accept it. This is because, as I have already pointed out, this situation, even if there is no other offence, constitutes the offence of abuse of position. Prosecutors or judges who engage in such an act will one day be held to account for this. So, neither reinstatement nor objection to a superior court are options.

- “Indeed, we are talking about an instance of espionage” says the President.

I will give you a concrete example. Paragraph two of Article 138 of our Constitution says, “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” And paragraph three of Article 138 says, “No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.” So, what do we see? Every day, statements having the nature of recommendations, suggestions and instructions emanate from one of the highest offices of state addressed to the judicial organ. We hear similar statements not only from Mr Erdoğan, but from other spokespersons of the AKP. It would appear that Article 138 is one of the articles to have been taken into the waiting room. For a high-ranking politician to make statements as if an offence had been substantiated is another matter that is forbidden by the Constitution and Penal Code. For, there is as yet no finalised court decision. Nothing has been adjudicated. There is, after all, a provision in our constitution that speaks of the presumption of innocence.

- The Prime-Minister says, “In the case of such usurpations of authority, it is clear that certain principles need to be put in place.” It is as though there is a wish to restrict individual applications to the Constitutional Court.

I would like to point to an irony here. The acceptance of individual applications was one of the most significant democratic reforms introduced by the AKP. The right to individual application has performed a very important function in terms of defending individuals’ basic rights and freedoms. It is a tragicomic situation for the AKP to be undergoing such reservations, or even expressing radical ideas, about a reform that it introduced.

- Were there an attempt to restrict individual application, what would this signify?

This would amount to a further step away from the principle of the rule of law and democratic standards. The principles underlying individual application are present in our constitution. Making a radical change in this regard and removing individual application in its entirety from the constitution can only be done through constitutional amendment. If they wish to make this change under a statute and the statute breaches the principles laid down in the constitution, the Constitutional Court will cancel that, too. Of course, just now we are not in a position to know what kind of amendment and limitation may be made. Since the esteemed President has said, “It must be subjected to certain principles,” this suggests that its limitation is on the cards.

- One of the President’s senior advisors, Mehmet Uçum, has proposed: “The section of the Constitutional Court Law covering pending actions should be redrafted. Otherwise, usurpation of subject-matter/territorial jurisdiction, usurpation of procedure/territorial jurisdiction and breaches of the natural judge principle through Constitutional Court rulings of this nature will become common place.”

This is the well-rehearsed position we have just discussed – he is saying once again in different words that there has been a usurpation of authority. Were such a statute to come onto the books, its constitutionality would be open for debate. If you say that individual application can only be made once proceedings have ended and become final, you will have blocked this means of recourse against all potential breaches of rights in the course of those proceedings. And, as a consequence, we will encounter cases of the kind we used to witness where people who are acquitted spend four or five years in prison. And I do not imagine that any jurist with a conscience could countenance this.

- The Minister of Justice has said, “The Constitutional Court’s internal regulations can be referred to the Council of State and those parts of it that breach the constitution can be cancelled.”

I do not agree with that, either. The Constitutional Court is an independent, basic state organ. It is not an administrative authority. The Council of State can only adjudicate on acts involving administrative authorities. The Constitutional Court is at liberty to draft its own internal regulations. This has been the case ever since the 1961 Constitution.

- Have you been reduced to astonishment by this spectacle that started with Erdoğan’s “I do not comply” proclamation?

Bearing in mind his previous statements such as, “The parliamentary system is in the waiting room; the regime has undergone de-facto change,” I was not too surprised. However, for Mr Erdoğan, who occupies the highest office of state, to criticise one of the state’s basic institutions in such strong terms – yes, this is a further new development. The esteemed President appears to be determined. But, the rules of law are abundantly clear. For the courts to act otherwise would constitute the offence of abuse of position.

- What lesson do you draw from everything that has been said after the Constitutional Court’s ruling?

It has proved once again that we are in a very critical period. The events over the coming period, particularly whether or not a constitution will emerge of the kind the AKP wishes for, will determine the fate of decades to come. As such, to quote the title of a book published in the past few months, we are at a critical crossroads.

- Were you to sum up our situation in a few choice words?

Slide into authoritarianism.

- Slide?

A gradual slide. That is why we are at a critical crossroads.

- And at this crossroads you are saying that a constitutional amendment based on the separation of powers is currently impossible.

The only country that has managed to operate the presidential system over the long term and remain true to high democratic standards is America. Other attempts, for example those in Latin America, can be said to have had terrible track records. America is a sui generis case. You cannot replicate the American example here. The political and cultural preconditions are not present in Turkey. Bearing in mind the negative steps in the judicial realm over the past few years, we see that this is impossible. The debate over the system of governance is secondary. Turkey’s prime priority at present is to reestablish the independence of the judiciary. The sole guarantee of individual liberty is an independent judiciary. How can we make a constitution based on the separation of powers sit alongside the law creating the penal courts of the peace and the current structure of the Supreme Council of Judges and Prosecutors?

- Is a massive effort needed to abolish the penal courts of the peace?

No, it calls for a simple statutory amendment. If the ruling party concedes to this.

It is a law that can be enacted in several days with parliamentary unanimity.

- As concerns the judiciary, how would you rate the journey through the crossroads that have been passed from 2010 to 2016?

There has been a very serious deterioration as far as the rule of law and judicial independence are concerned. As the critical point here is the Supreme Council of Judges and Prosecutors, the turning point in the affair was the election to the Supreme Council of Judges and Prosecutors. The Ministry of Justice did what it should not have done and got involved in a very active way. It gave logistical and moral support to a group that it felt to be close to it. It is incorrect to lay all of the blame for the place in which we now find ourselves at the door of the Ministry of Justice of the government. The roughly thirteen thousand judges and prosecutors who participated in this vote also bear responsibility.

- Your response to those who say, “The support and contribution of you, the liberals, towards the 2010 referendum played a part in taking us to this place?”

What was accepted under the 2010 amendment was a system in which the entire judiciary, the lower echelons of the judiciary included, was represented. It complied with democratic and European standards. It is impossible to react negatively to this. But, in Turkey certain results confound expectations. And this was one result that confounded expectations. The critical factor here was that the group which from the outset said it would work in harmony with the regime over the Supreme Council of Judges and Prosecutors elections was in the overwhelming majority. So, I do not apportion all of the blame to the government. Those of our colleagues who created a structure of this nature have little right to criticise the current situation of judges and prosecutors.

- You headed the academic commission that compiled the AK Party’s 2007 draft constitution. Is it true that you and your colleagues on the commission did not favour the presidential system?

Let me go further. Before accepting this position, I requested an assurance on this matter. If they had said, “A constitution is to be drawn up that fits the presidential system,” I would certainly not have accepted this position. I told Mr Erdoğan, “I thank you for your confidence. But, if you are expecting a constitution based on the presidential system, please excuse me.” They said this certainly was not the case. And they pointed to their as-yet unpublished election manifesto (the 2007 election manifesto – S.O.). Mr Cemil Çiçek, who was present at the meeting, read out sections of the manifesto concerning the regulating of relations between state organs in line with the principles of the parliamentary system and whereby the President’s powers would also be rearranged under such a perspective. What did this mean? This meant that they were going to reduce the President’s existing powers. We took this point in the electoral manifesto by way of assurance. And we drew up a draft that accorded with the principles of parliamentary government and which very considerably limited the President’s current powers.

- How did Erdoğan find this draft?

Not only Mr Erdoğan, but the other leading lights in the AKP found it to be extremely positive. At that time, far from there being an insistence to this extent on the presidential system, it was not yet even being mooted.

- Plenty of water has flown under the bridge from those days in which you compiled the 2007 draft constitution until today. Especially when we look at the judicial realm, we have reached a situation where the attitude seems to be, “Remand them, it will go to the ECHR and we will pay compensation.” What analysis would you make of the place we have reached?

The view prevailing in certain circles is that, “This in any case was their intention all along. But, at that time they had hesitations over certain points. They had to reinforce their legitimacy domestically and abroad and so they hid their true agenda so as to gain the support of liberals and democrats.” I did not pay much attention to this. I did not doubt the sincerity of their actions at the time. So, what has changed, and why has it changed? I think the 2011 elections were the turning point. This was the AKP’s third election victory. They had increased their vote in every election. The fifty percent they had reached may have instilled overconfidence. Another point is that until the trials involving the armed forces and certain reforms made in 2010, it was possible to speak of a guardianship on the part of the armed forces and the judiciary. Let us not forget that in 2008 the AKP narrowly escaped being closed. All of these things may have been instrumental. I do not want to engage in speculation. But, I see two panoramas, 2007 and today. They differ as black does from white or night from day.

- So, how do you account for things having turned out this way?

I do not possess a very satisfactory answer to this question. Yes, this is a very fundamental question. But, I do not think that anybody can give a very definitive answer to this question. You note that the leading lights of the movement at that time are also complaining today. They are giving clear vent to their unease. The AKP regime could have continued on the same democratic path. It would have been in a much more comfortable position today. Everything was moving in its favour, including the 2011 elections. Why did it prefer to move so far down the road of polarisation? Trust me, I cannot find a reasonable and logical reason.

- Professor Özbudun, how old are you?

(Replies in laughter) I was born in 1937, so I am 79.

- Do you sense within you that, “I have missed that train and I will not see that democratic constitution?”

Naturally enough, I get the feeling that I will not. As the late Çetin Altan put it, I do not think I will see it, anyhow, on account of my age. Had the 2007 draft not suffered a train wreck, had it been approved following a little further improvement and discussion in society, I would not be having this discussion with you today. The events in the South East would probably not be taking place today.

- How will curfews lasting more than a hundred days affect Turkey’s legal standing?

The internal security law recently enacted transfers certain powers held by the judiciary to the administrative authorities. There is a provision in our Constitution as to “Fully and partially suspending basic rights under extraordinary circumstances.” Here, for example, the freedom to travel has been in a state of suspension for a very long time. This can only happen if a state of emergency is declared. But no state of emergency is in existence. The ordinary state of affairs remains in force and the administrative authorities are imposing these bans, not the judiciary. From wherever you look, an increasing disregard for the rules of law is apparent. This is the point that should arouse concern. Not even a contrived regard for the law is shown. A state of emergency could well have been declared – the preconditions existed – this could have been done in the text-book fashion at the time. That no need was felt even to pretend to go by the book is also one of the tokens of the situation we find ourselves in.

- Do you maintain your belief in a happy end in which the law will be applied as it deserves to be?

I do not hold great hopes for the next few years. But, Turkey is full of surprises. The June elections aroused hope and optimism. A three-party coalition that would have conducted a democratic spring cleaning could have been formed. The HDP could also have given external support. The opposition, chiefly the MHP, wasted this opportunity. It is not that Turkey is deprived of opportunities to conduct democratic spring cleaning and it may be presented with such opportunities in the future. I trust our people’s common sense. Let us hope for the best. As Çetin Altan would have put it, let us keep our chins up.

Archive of Turkish press translations by Tim Drayton